Falk-Bloch Mercantile Co. v. Branstetter

• Court: Idaho Supreme Court
• Writing for the Court: SULLIVAN, J.
• Citation: Falk-Bloch Mercantile Co. v. Branstetter, 4 Idaho 661, 43 P. 571 (Idaho 1896)
• Decision Date: 23 January 1896
• Parties: FALK-BLOCH MERCANTILE COMPANY v. BRANSTETTER, SHERIFF

43 P. 571

4 Idaho 661

FALK-BLOCH MERCANTILE COMPANY v. BRANSTETTER, SHERIFF

Supreme Court of Idaho

January 23, 1896

LEVY OF WRIT OF ATTACHMENT-CHATTEL MORTGAGE-PRIORITY OF LIEN-POSSESSION AND CUSTODY OF PROPERTY.-Under the levy of a writ of attachment on personal property, if the custody and possession thereof is such as to enable the officer to hold the property and subject it to the order of the court issuing the writ, it is sufficient to create a lien thereon prior to a lien of a chattel mortgage executed and filed subsequent to making the levy of the writ, but prior to taking actual possession of all of the property on which said writ was levied, provided the officer proceeds with reasonable diligence to reduce all of such property to his actual possession and does so reduce it.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Judgment reversed, with instructions. Cost awarded to appellant.

Hawley & Puckett, for Appellant.

The court instructed the jury that there was a valid levy on the twenty-four logs on the bank of the river prior to the filing of the mortgage; hence it necessarily follows that the mortgage is absolutely void as to those twenty-four logs and, if void in part, the mortgage is void in whole. (Wilson v. Voight, 9 Colo. 614, 13 P. 726; Horton v. Williams, 21 Minn. 187; Russell v Winne, 37 N.Y. 591, 97 Am. Dec. 755.) There was a valid existing lien before and at the time the mortgage was filed and became a lien. The return of the sheriff, which is prima facie evidence of the recitals therein, shows that the attachment was made at 10 o'clock A. M. on May 10, 1893. The mortgage itself shows that it was filed with the recorder of Ada county, Idaho at ten minutes past 11 o'clock A. M. May 10, 1893, and it is not disputed, so it must be admitted that the levy of attachment was made just one hour and ten minutes before the mortgage in question was filed with the county recorder. Such mortgage was not binding except as between the parties until the same was filed, although they had actual notice of its existence. (Baxter v Smith, 2 Wash. Ter. 97, 4 P. 35; Ramsey v. Glenn, 33 Kan. 271, 6 P. 265; Jewell v. Simpson, 38 Kan. 362, 16 P. 450; Beamer v. Freeman, 84 Cal. 554, 24 P. 169; Standard Imp. Co. v. Parlin and Ordandoff Co., 51 Kan. 566, 33 P. 363; Farmers' etc. Bank v. Anthony, 39 Neb. 343, 57 N.W. 1029; Smelser v. Baker, 6 Tex. Civ. App. 751, 26 S.W. 905.) The levy of attachment was a legal one, taking into consideration the nature of the property. The character of the property must be considered. The law does not require impossibilities, and does not require that the same acts shall be done in levying upon ponderous or immovable property as upon property upon which a complete and visible change of possession may be easily consummated. (Idaho Rev. Stats., subd. 3, sec. 4307; Farrington v. Sinclair, 5 Johns. 428; Crisman v. Dorsey, 12 Colo. 567, 21 P. 920; Throop v. Maiden, 52 Kan. 258, 34 P. 802; Lyeth v. Griffis, 44 Kan. 159, 24 P. 59; Drake on Attachment, 256.) Possession is sufficient to preserve an attachment lien, if the officers retain control over the property attached. (Hemmenway v. Wheeler, 14 Pick. 408, 25 Am. Dec. 411; Mills v. Camp, 14 Conn. 219, 36 Am. Dec. 488; Nichols v. Patten, 18 Me. 231, 36 Am. Dec. 713.) It is shown that of the amount specified in the mortgage only $ 421.53 was due the mortgagee; we therefore contend that the mortgage being given for a greater sum than was due, was void. (Bailey v. Burton, 8 Wend, 339; Divver v. McLaughlin, 2 Wend. 596, 20 Am. Dec. 655; Tully v. Harloe, 35 Cal. 302, 95 Am. Dec. 102.)

George H. Stewart and S. L. Tupton, for Respondent.

The mortgagors, Lawson and Williams, were indebted to plaintiff, C. S. McConnell & Co., and many laborers who assisted in creating the property covered by the mortgage, and taken under the writ of attachment, and were unable to pay their debts. A person largely in debt and unable to pay may prefer a creditor, even though by so doing he thereby defeats the collection of other debts, and the creditor is aware of such facts. (Wheaton v. Nevill, 19 Cal. 41; Ross v. Sedgwick, 69 Cal. 247, 10 P. 400; Dyer v. Bradley, 69 Cal. 557, 26 P. 1103; Wood v. Franks, 67 Cal. 32, 7 P. 50; Dana v. Stanford, 10 Cal. 369.) The plaintiff may have known that an attachment had issued against the mortgagors at the time the mortgage was executed to plaintiff, yet that would not render the mortgage fraudulent. (Wheaton v. Nevill, 19 Cal. 42; Ross v. Sedgwich, 69 Cal. 247, 10 P. 400; Lewin v. Hopping, 67 Cal. 541, 8 P. 73-75.) There was no fraud in giving the mortgage in controversy. It covered twenty-four poles the mortgagors had no right to encumber, but these twenty-four poles are not in controversy in this case. A chattel mortgage is nothing more or less than a sale of personal property made to secure an indebtedness. (Moore v. Murdock, 26 Cal. 515.) The officer must reduce the property to his control, and his acts must be such that except for the protection of the writ, he would be liable as a trespasser. (Rev. Stats., sec. 4307; Lynch v. Griffis, 44 Kan. 159, 24 P. 59; Rix & Stafford v. Silknitter, 57 Iowa 262, 10 N.W. 653; Crisman v. Dorsey, 12 Colo. 567, 21 P. 920, Kiesel v. Union P. R. R. Co., 6 Utah, 128, 21 P. 499; Herron v. Hughes, 25 Cal. 556; Hollister v. Goodale, 8 Conn. 332, 21 Am. Dec. 677; Taffts v. Manlove 14 Cal. 48, 73 Am. Dec. 610; Waples on Attachment, 174 et seq.) The mortgagors had a right to give a mortgage to plaintiff for a bona fide debt due the plaintiff, and also to cover an indebtedness due others. As to the others, plaintiff was the trustee. The mortgage was not for that reason fraudulent. (Wood v. Franks, 67 Cal. 32, 7 P. 50; Saunderson v. Broadwell, 82 Cal. 132, 23 P. 36.)

SULLIVAN, J. Morgan, C. J., and Huston, J., Concur.

OPINION

SULLIVAN, J.

This action was brought by the Falk-Bloch Mercantile Company against H. C. Branstetter, as sheriff, to recover the sum of $ 850 as damages alleged to have accrued by reason of the levy and seizure, under a certain writ of attachment, in the suit of McConnell v. Lawson and Williams, of certain electric light poles, upon which the respondents, the Falk-Bloch Mercantile Company, claimed to have a lien by reason of a certain chattel mortgage. The defense was that the chattel mortgage was given to defraud creditors of the mortgagors, and that the seizure of said poles, under said writ of attachment, was made prior to the filing of said chattel mortgage. The cause was tried by the court with a jury, and resulted in a verdict and judgment for plaintiff in the sum of $ 750. A motion for a new trial was overruled. This appeal is from the judgment and order denying the motion for a new trial.

The following facts appear from the record: Suit was brought by one C. S. McConnell against J. H. Lawson and Ben Williams, in the probate court of Ada county, and a writ of attachment issued. On May 8, 1893, said writ was placed in the hands of Branstetter, as sheriff, for service. It appears that said Lawson and Williams had several hundred telephone and electric light poles, all of which, except twenty-four, were in Boise river, between what is known as the "Upper Boise Wagon Bridge" and the mouth of Moore's creek, a distance of about twenty miles, which poles were being floated down said river to said bridge, and, when they reached the bridge, were being taken out and piled on the bank of the river by Lawson and Williams. That on the evening of the 9th of May, 1893, the said sheriff went to said bridge and served the summons in said suit of McConnell v. Lawson and Williams on said defendants, and levied said writ of attachment on twenty-four of said poles, which he found piled on the bank of the river near said bridge. Thereupon Lawson and Williams informed the sheriff that, "if that is the way they are going to act, we will have nothing more to do with them [the poles]" and left the place. The sheriff put a man in charge of said twenty-four poles after making the levy. On the following morning, May 10th, the sheriff sent his deputy, Mr. Duncan, to said bridge, and it appears from his testimony that he went to said bridge and found one C. C. Allen there, and informed him that he had come, as deputy sheriff, to attach the logs in the river, and that he appointed Allen keeper, with instructions to take possession of the...